(concurring and concurring in the result).
I concur in sections II, IV through VI, and IX through XI of the opinion authored by Chief Justice Hall, and I concur in the result in sections III, VII and VIII. Therefore, I vote to affirm the conviction and the sentence. I refer to the opinion of the Chief Justice as the majority or lead opinion for ease of reference because three or more justices have concurred in sections II through VI and sections IX through XI. However, sections VII and VIII of the opinion do not command a majority of the Court. I write separately because I have a somewhat different view of the unanimity and merger issues as they are raised in this case from those expressed by the lead opinion and by Justice Durham’s concurring and dissenting opinion.
I. UNANIMITY OF THE JURY WITH RESPECT TO THE AGGRAVATING CIRCUMSTANCES
Section VII of the lead opinion addresses defendant’s contention that neither the jury instructions nor the verdict forms required the jury to find unanimously one or more of the aggravating circumstances charged —i.e., burglary, aggravated burglary, arson, or aggravated arson — as had to be found to raise the homicide to a capital offense. In my view, the jury was instructed to act with the requisite unanimity, but even if it were not, the error was harmless. In any event, my views on jury unanimity are different from those expressed in the lead opinion and Justice Howe’s opinion and are essentially in accord with Justice Durham’s and Justice Zimmerman’s views, although my analysis leads me to a different result in this case than they reach on this issue. For that reason, I write separately.
The lead opinion and Justice Howe’s opinion state that to convict of a capital crime, it is not necessary for the jury to agree unanimously on which particular statutory aggravating circumstances or circumstances defendant committed, as long as the jurors unanimously agree that defendant committed at least one of the several aggravating circumstances charged against him, even though they disagree as *578to which aggravating circumstances have been proved beyond a reasonable doubt.
I disagree with that proposition because I believe that it violates the Utah criminal code and contravenes an established constitutional right guaranteed by the federal and Utah Constitutions.
An aggravating circumstance is an indis-pensible element of the offense of first degree murder, and without proof of such an element beyond a reasonable doubt to the satisfaction of every juror, a homicide can only be a second degree murder. The criminal code, Utah Code Ann. § 76-1-501(2) (1978), defines the term “element of the offense” to be:
(a) The conduct, attendant circumstances, or results of conduct proscribed, prohibited, or forbidden in the definition of the offense;
(b) The culpable mental state required.
(Emphasis added.) Section 76-1-501(2) also provides that every “element of the offense” must be proved beyond a reasonable doubt. In addition, Article I, Section 10 of the Utah Constitution requires that the jury be unanimous as to every element of a crime. In State v. Green, 78 Utah 580, 6 P.2d 177, 181 (1931), this Court stated: “The provision of our State Constitution which grants accused persons the right to a trial by jury extends to each and all of the facts which must be found to be present to constitute the crime charged....” The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the same. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Aggravating circumstances are facts “which must be found to be present to constitute the crime” of first degree murder under Green and Article I, Section 10, and they also constitute an “element of the offense” of first degree murder under § 76-1-501(2). Without proof beyond a reasonable doubt of aggravating circumstances, an intentional homicide is at most a second degree murder.
The importance of preserving the principle of jury unanimity as to all “elements of an offense” can hardly be overstated. To dilute that principle by allowing jurors to disagree among themselves as to separate, alternative elements of the crime, even though they agree on the general conclusion that the crime of first degree murder has in fact been committed, is to lose the value of the synergistic effect of jurors acting as a group in reconstructing the facts and applying the law. Nonunanimity permits a jury to refrain from coming to grips with determining precisely what the defendant did and then deciding whether that meets the legal standards that define the elements of the crime.
Nonunanimity as to alternative elements of a crime can also deprive a defendant of a defense to the charge. Under the view taken by the Chief Justice and Justice Howe, if a defendant urges a defense that is valid as to one alternative element but not to another and the jury splits on which alternative the defendant committed, the jury is not forced to decide the validity of the defense.
Furthermore, nonunanimity tends to subvert the proper operation of the lesser included offense doctrine, which is a constitutionally significant factor in capital homicide cases. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). That is so because the jury may never have to consider that doctrine since it is not compelled to decide whether the defendant committed one or the other (or both) alternative elements in the definition of the crime. Finally, if the principle of jury unanimity is relaxed, all the vaunted protections of proof beyond a reasonable doubt will be threatened. Requiring juror unanimity as to the crime itself only, rather than each element of the crime, would permit a jury to render inconsistent and potentially irrational verdicts because they may be based on conflicting and even inconsistent determinations of the facts. That is no small erosion of a fundamental principle of our criminal justice system.
It follows, I believe, that our Constitution, our case law, and our statute require us to reject the rule of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903), and the authority it has spawned, in connection with aggravating circumstances in capital *579homicide cases. Indeed, Sullivan deals with an entirely different kind of problem.
Furthermore, State v. Russell, 733 P.2d 162 (Utah 1987), relied upon by the Chief Justice and Justice Howe, does not support the proposition that the requirement of jury unanimity can be disregarded with respect to aggravating circumstances. Russell dealt with a second degree murder charge. The jury in that case was instructed that the mental state required for proof of second degree murder could be demonstrated by proof that the defendant intentionally or knowingly caused the victim’s death, intentionally caused serious bodily harm by an act clearly dangerous to human life, or acted with depraved indifference toward human life by creating a grave risk of death. The lead opinion in Russell did not command a majority, and the facts of the case were not analogous to the instant case. I wrote a concurring opinion expressly limiting the scope of the rule to the mens rea, or mental state, element in second degree murder cases on the ground that the statutory definitions of the pertinent mental states for the second degree murder were only variations of the common law mens rea, malice aforethought, and therefore merely different facets of the same mental state. Justice Durham also wrote a separate concurring opinion limiting the rule applied, and Justice Zimmerman concurred in the result. Thus, the actual holding of Russell is very narrow and does not support nonunanimity with respect to particular aggravating circumstances that would support a conviction of first degree murder.
Notwithstanding the foregoing discussion, I do not believe that the principle of jury unanimity as I think it must be applied was violated in this case. The jury was instructed that it had to find each element of the offense by proof beyond a reasonable doubt, and the instructions were pellucid that an aggravating circumstance was an element of the crime that had to be proved beyond a reasonable doubt. The jury was instructed that in addition to finding an intentional killing, it must also find that defendant committed arson or aggravated arson and/or burglary or aggravated burglary. The instruction permitted the jury to find any one of these predicate offenses, or more than one, but it did not reasonably lend itself to the interpretation that some jurors could find one aggravating circumstance or offense, while other jurors disagreed on that finding and found some other aggravating circumstance or offense. State v. Rasmussen, 92 Utah 357, 68 P.2d 176 (1937). The instruction reads in toto:
The defendant has entered a plea of not guilty to the charge of Criminal Homicide, Murder, First Degree, a Capital Offense, as contained in the Information. By the plea of not guilty the defendant denies each and every one of the essential elements of the charge, which elements are as follows:
1. That on or about May 26, 1982, in Salt Lake County, State of Utah, the defendant, Elroy Tillman, caused the death of Mark Schoenfeld; and
2. That he acted intentionally or knowingly in causing the death of Mark Allen Schoenfeld; and
3. That at the time the homicide was committed, the defendant was engaged in the commission of, or attempting to commit burglary or aggravated burglary, and/or arson or aggravated arson.
If you find the State has proven beyond a reasonable doubt each and every one of these elements, then it is your duty to find the defendant guilty of the offense of Criminal Homicide, Murder, First Degree, a Capital Offense. On the other hand, if you find the State has failed to prove any of these elements beyond a reasonable doubt then you must find the defendant not guilty of the offense of Criminal Homicide, Murder, First Degree, a Capital Offense, and you may then consider the lesser included offense of Criminal Homicide, Murder in the Second Degree, a first degree felony-
(Emphasis added.)
The clear impact of the last quoted paragraph of the instruction, together with the general unanimity instruction given to the jury, is that the jury as a group had to find *580unanimously at least one aggravating circumstance. The word “you” in the last paragraph of the instruction rather clearly refers to the jurors collectively, as is apparent from the following language (in addition to other similar language): “... you must find the defendant not guilty ... and you may then consider the lesser included offense....” Since the rule is that the jury is presumed to have followed the instructions given, I conclude that the jury did act unanimously with respect to each element of the offense, including the aggravating circumstances.1 See State v. Rasmussen, 92 Utah 357, 68 P.2d 176 (1937).
Defendant argues that each aggravating circumstance should have been charged in a separate count and a separate verdict rendered on each charge. That clearly is a preferable course, in my view, because it focuses the jury’s attention on the aggravating circumstances and facilitates appellate review for sufficiency of the evidence, if such a claim is made. However, the failure to give such instructions in this case is not, in my view, cause for reversal. In sum, I concur in the result reached by the lead opinion.
II. THE MERGER DOCTRINE
I write on the merger doctrine, although I agree in general with the lead opinion, because my views differ in certain particulars from the lead opinion and from Justice Durham's opinion.
The merger doctrine was founded in, and grew out of, the old common law felony-murder rule which imposed capital punishment on a person who accidentally or negligently killed someone during the course of committing a felony. The theory was that the intent to commit the felony could be “transferred” to the homicide to increase the punishment.
The doctrine of merger operated to temper the harshness of the felony-murder rule. Where the predicate felony, such an aggravated assault, was inherent in the act of the homicide, the law merged the two offenses so that the felony-murder rule could no longer apply. Indeed, logic required as much. E.g., State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965); People v. Ireland, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (1969); State v. Clark, 204 Kan. 38, 460 P.2d 586 (1969); State v. Fisher, 120 Kan. 226, 243 P. 291 (1926); People v. Huther, 184 N.Y. 237, 77 N.E. 6 (1906); State v. Branch, 244 Or. 97, 415 P.2d 766 (1966); W. LaFave & A. Scott, Handbook on Criminal Law 547 (1972); R. Perkins, Criminal Law 40 (2d ed. 1969). See also Moreland, A Re-Examination of the Law of Homicide in 1971: The Model Penal Code, 59 Ky.LJ. 788, 803-04 (1971), which argues that the entire felony-murder rule should be abandoned in this country as it has been in Great Britain. See English Homicide Act 5 & 6 Eliz. 2, c. 11, § 1 (1957). For a contrary view of merging aggravated assault with murder, see State v. Thompson, 88 Wash.2d 13, 558 P.2d 202, appeal dismissed, 434 U.S. 898, 98 S.Ct. 290, 54 L.Ed.2d 185 (1977); State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966).2
The Utah criminal code abandons the common law felony-murder rule as to capital homicide and retains it only as to second degree murder. As it pertains to this case, Utah Code Ann. § 76-5-202(l)(d) (1978) provides that for a homicide to be a murder in the first degree, the homicide must be committed while the defendant “was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit ... aggravated arson, arson, aggravated burglary, [or] burglary....” In my view, the homicide in this case was literally committed while de*581fendant “was engaged in the commission of aggravated arson, arson, aggravated burglary, [or] burglary.”
The dissenting opinion reads the language “while ... engaged in the commission of ...” to mean that a defendant must have an independent felonious purpose for committing a burglary or arson other than killing the victim in order for the homicide to be a first degree murder.3 In other words, if one unlawfully enters another’s premises for an independent felonious purpose such as stealing, an intentional homicide which is committed during the burglary is a first degree murder, and the burglary is characterized as “coincidental” to the homicide. But if one unlawfully enters another’s premises solely for the express purpose of killing someone within, that intentional killing, according to the dissent, is second degree murder, and the burglary is deemed “incidental.”
I have difficulty with that analysis for several reasons. First, I believe it would be anomalous to adopt a rule which in effect makes an intentional killing committed during the course of an “incidental” burglary (i.e., one committed for the purpose of killing another) a second degree murder, while an unintentional killing committed during the course of a burglary is also a second degree murder. See Utah Code Ann. § 76-5-203 (Supp.1987) (second degree murder statute). Furthermore, one who commits a burglary to steal and intentionally kills to further that end would be guilty of first degree murder, while one who intentionally kills after entering unlawfully for that purpose would be guilty only of second degree murder. The distinction drawn by the dissent does not, in my view, bear the weight of the differences placed on it. Rather, the distinction results in disparate treatment of an intentional murder committed in the course of an “incidental” burglary and an intentional murder committed during the course of a “coincidental” burglary, even though there is no substantial difference in moral culpability between these two homicides and the statutory language in § 76-5-202(1) does not require that result.
Second, the first degree murder statute is designed to provide added deterrence for specific types of conduct. Thus, subsection (l)(d) of the statute makes intentional killings done while one is “engaged in the commission of” certain felonies first degree murder. The statute also makes homicides first degree murder if they are accomplished by particular means, such as by poisoning, bombs, or explosives, or by or against particular persons.
Nevertheless, I agree with the reasoning of People v. Green, 27 Cal.3d 1, 60-62, 609 P.2d 468, 505-06, 164 Cal.Rptr. 1, 38-39 (1980), cited in Justice Durham’s dissent, that the special circumstances giving rise to first degree murder must provide a rational basis for distinguishing between murders which are capital murders and murders which are not capital murders. The aggravating circumstance provisions of the first degree murder statute may not be allowed to become so all-inclusive or so out of harmony with constitutional doctrine as to cause the sentencing of capital homicide to deteriorate into the capriciousness and arbitrariness held to be unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and condemned in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It is therefore necessary, in my view, to apply the special circumstances specified in § 76-5-202 with care to avoid irrational *582results, as was done in People v. Green. Thus, the aggravating circumstance of burglary might yield capricious results in a case involving a constructive burglary or a burglary committed in some places other than a dwelling.
It does not, however, follow that there is capriciousness in imposing capital punishment on one who commits a burglary by stealth for the purpose of killing an inhabitant who is asleep. Of course, the purpose to kill is what makes the unlawful entry in this particular case a burglary. See Utah Code Ann. § 76-6-202(l)(d) (1978). But there is a legitimate reason for making an intentional murder committed after an unlawful entry into a home or residence a more severely punished crime than an intentional homicide that is only a second degree murder. The law traditionally has recognized certain areas, such as the home, where one should be able to feel secure and relax one’s guard, and where people deserve special protection. Indeed, when one is asleep at home, as was the victim in the instant case when he was attacked by defendant, he is especially helpless in the face of an assault by others.4
Clearly, the Legislature may decide that certain acts committed within the same or continuous transaction or course of action offend several different societal interests and thereby constitute separate offenses which are not subject to the doctrine of merger. See Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The Legislature has acted to protect both the privacy of a residence and the sanctity of life. It has also decreed that the intentional taking of life by one “engaged in the commission of, or attempt to commit ... aggravated arson, arson, aggravated burglary, [or] burglary ...” constitutes first degree murder. This conclusion has been reached as far as I have been able to determine by every other court that has addressed the issue, except one. Thus, in Blango v. United States, 373 A.2d 885 (D.C.1977), the District of Columbia Court of Appeals, on facts similar in essential respects to the instant case, held that a burglary committed for the purpose of committing a murder was a capital homicide. A number of states have adopted the same rule. See, e.g., State v. Miller, 110 Ariz. 489, 520 P.2d 1113 (1974); State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978); Smith v. State, 499 So.2d 750 (Miss.1986); State v. Reams, 292 Or. 1, 636 P.2d 913 (1981). Cf. People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 (1973). Contra Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
. Even if the principle of juror unanimity as to aggravating circumstances could have been violated under the instruction, the assumed error would clearly be harmless because there is no real dispute in this case that the defendant in fact committed arson, aggravated arson, burglary, and aggravated burglary. That evidence is not really contested.
. Significantly, the Utah Legislature has excluded aggravated assault as a predicate offense from the first degree murder and second degree felony-murder provisions of Utah law. Therefore, aggravated assault is not a predicate felony upon which either first or second degree murder may now be based.
. Burglary is defined by Utah Code Ann. § 76-6-202(1) (1978) as follows:
A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person.
Aggravated burglary is defined by Utah Code Ann. § 76-6-203(1) (1978) as follows:
A person is guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary, the actor or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Uses or threatens the immediate use of a dangerous or deadly weapon against any person who is not a participant in the crime; or
(c) Is armed with a deadly weapon or possesses or attempts to use any explosive or deadly weapon.
. The great breadth of the burglary statute might well give rise to constitutional questions if prosecutors charge first degree murder on every possible application of that statute. See Utah Code Ann. §§ 76-2-201, 202 (1978).